Siddharth Sharma, BSc-LLB (Hons.), 3rd year and Sudeep Kumar Mishra, BBA-LLB (Hons.), 3rd year from KIIT School of Law. This Article won 10th position in 4th RostrumLegal Essay Competition, 2016

The historical fact is when the Constitution of India was been drafted and we were having Eminent personalities like Dr.Rajendra Prasad, Pt.Jawaharlal Nehru, Sardar Patel, Dr.Ambedkar etc. all present in the constituent assembly, Dr.Ambedkar proposed in Art.44[i] that state shall endeavour to have Uniform civil code, nobody in 1948-49 regarded this as a communal approach it was intended to express a desire of India that eventually one day we will have a Uniform civil code.

The first question which comes to mind when the Uniform Civil Code (UCC) comes is “will Uniform civil code unify India”. Three words which divide the ideologies of UCC in two categories are Political, Socially and religiously.

Politically where one party is in favor of the implementation of UCC and other parties are against the formation of it. Socially some people who have the knowledge they can analyze the future consequences but illiterate people cannot. And religiously there is dangerous division in the ideologies between Hindus and Muslims and other minorities. The question is why the common civil law should be seen as a transgression into any one religion when it is, in fact, the unification of all laws? And do fundamental rights of liberty and equality take precedence over the right of a religion to manage its own affair?

MEANING OF UNIFORM CIVIL CODE-

The expression is a combination of three terms (Uniform, Civil, and Code). Now going by the general definition Uniform means ‘same in similar conditions’, Civil derived from Latin word ‘civilis’ means ‘citizen’; when it is used as an adjective of law it means ‘pertaining to private rights and remedies of a citizen’; Code means ‘codified laws’. Indeed in legal regime, UCC is confined to having uniform personal code for every individual and communities across the country i.e. Hindu, Muslim, Christian, Parsi and other religion residing in India to achieve the goal embodied in the Art.44 of the Constitution of India.

The true idea behind the uniform civil code is no preferential treatment but treating all faiths equally.

NEED OF UNIFORM CIVIL CODE-

The drafters of the Constitution were well aware of the fact that there is a need to unite India and make it a truly secular nation and for that there is a need of uniform civil code. But even after 69 years of independence, we haven’t been able to do this. The reasons for why this has not been done are very complex. The need of UCC in India is very reasonable,

Firstly to promote secularism: A uniform civil code doesn’t mean it will limit the freedom of people to follow their religion, it just means that every person will be treated the same and regulated under the same law.

Secondly, equal rights to females: A uniform civil code will also ensure in improving the condition of women in India. Women should be treated fairly and given equal rights, but there are certain provisions in some personal laws which are against the fundamental rights of woman.

Thirdly, it will remove the religion based politics which will lead to a progressive society. A uniform civil code is the sign of modern progressive nation.

Fourthly, it will remove Loop holes in Personal Laws: basically, the person who is in power exploit other which are the loop holes in personal laws. The Khap panchayats continue to give judgments that are against Indian constitution, human rights are violated through Honor killings and female feticide in some part of the country this all regulated through personal practices and customs. A uniform civil code would change that.

Fifthly, Integrate India: According to Justice Y.V Chandrachud former CJI “A common Civil Code will help the cause of national integration by removing disparate loyalties to the law which have conflicting ideologies”.[ii] A uniform civil code will help in integrating India more than it has ever been since independence. A lot of ill feeling is caused by preferential treatment by the law of certain religious communities and this can be avoided by a uniform civil code. It will help in bringing every Indian, despite his caste, religion or tribe under one national civil code of conduct.

CONSTITUTIONAL PROVISIONS-

Art 44 describes that there should be Uniform civil code for the citizens. Uniform law for all persons may be desirable. But its enactment in one go may be counter-productive to the unity of the nation.[iii] It is clear that the Constitutional law makers have not put it mandatory to enforce Uniform civil code over the territory of India. There is no doubt that the Indian Constitution system is very clear, we adopted a Constitution which provided for a set of Fundamental rights. The Constitution has two distinct provision one in Article 13[iv]which says that all laws will be compliant with the fundamental rights, the second of course mentioned in Art 25[v] which grants the freedom to propagate and profess as far as and practice your religion. And the right of freedom of Religion is also a fundamental right and nobody can deny it. The old conservative view was that as far as the personal laws are the concern they need not be compliant with constitutional fundamental rights.

Now the basic question is what are the area which are likely to be covered by religion and what are the area which are kept out of the domain of religion. There are or were certain practices in different religion in India which are contradictory to certain rights of an individual. The rights which individual acquires by virtue of his birth as a citizen of India despite of their gender. There are rights of inheritance, there are rights which accrue on account of marriage, on account of adoption, and there are rights which will accrue to you because of divorce. So is this gambit of rights going to be controlled by religion or by Constitutional practices? Now the Constitution today guarantee every individual the right to equality[vi] the right to leave with dignity etc. Now if we see the present scenario there are certain practices in India like Triple Talaq, Bigamy etc. which are contradictory to the above mentioned constitutional rights which are practiced under Muslim Laws, there might be few practices in other religion which might be contradictory to the Constitution. So as far as the personal laws are concerned, if it is tested today then all personal law should be tested on the ground that whether they are constitutionally compliant or not. Personal laws cannot practice and propagate Discriminations, cannot allow a compromise with human dignity. Personal laws and practices can certainly deal with or the religion can dictate upon rituals but religion can’t dictate upon the rights of an individual.

Pundit Nehru in 1956-57 amended the Hindu law prior to that date Hindus were also allowed multiple marriages, there were discriminatory rights as far as succession was concerned which was amended as far as Hindu law was concerned, since then the religious practice has to alter accordingly. So if there is any discriminatory in any personal law then it should be altered even if it contradict any religious practices because the practice are violating the fundamental rights assured by the constitution. Justice Kuldip Singh also opined that Article 44 has to be to be retrieved from the cold storage where it is lying since 1949. The Hon’ble Justice referred to the codification of the Hindu Personal law and held “where more than 80 percent of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance anymore the introduction of uniform civil code for all the citizens in the territory of India.”[vii]

The Supreme Court’s latest reminder to the government of its constitutional obligation to enact a UCC came in July 2003[viii], Where a Christian priest knocked the doors of the court challenging the constitutional validity of section 118 of the Indian Succession Act. In this case Chief Justice Khare stated that, “We would like to state that Article 44 provides that the state shall endeavour to secure for all citizens a Uniform Civil Code throughout the territory of India it is a matter of great regrets that article 44 of the constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common Civil Code will help the cause of national integration by removing the contradictions based on ideologies.”

THE CONFLICT BETWEEN UCC AND SECULARISM

The question is why the common civil law should be seen as a transgression into any one religion when it is in fact the unification of all laws? And do fundamental rights of liberty and equality take precedence over the right of a religion to manage its own affair?

The controversy revolving around UCC has been secularism and the freedom of religion secured in the Constitution of India. The preamble of the Constitution states that India is a “secular democratic republic” This means that there is no State religion. A secular State shall not discriminate against anyone on the ground of religion. A State is only concerned with the relation between man and man. It is not concerned with the relation of man with God. It does not mean allowing all religions to be practiced and regulate every individual. It means that religion should not interfere with the daily life of an individual. In S.R. Bommai v. Union of India[ix], as per Justice Jeevan Reddy, it was held that religion is the matter of individual faith and cannot be mixed with secular activities. Secular activities can be regulated by the State by enacting a law.

In India, there exist a concept of “positive secularism” as distinguished from doctrine of secularism accepted by America and some European states i.e. there is a wall of separation between religion and State. In India, positive secularism separates spiritualism with individual faith. The reason is that America and the European countries went through the stages of renaissance, reformation and enlightenment and thus they can enact a law stating that State shall not interfere with religion. On the contrary, India has not gone through these stages and thus the responsibility lies on the State to interfere in the matters of religion so as to remove the impediments in the governance of the State. Articles 25[x] and 26[xi] guarantee right to freedom of religion. Article 25 guarantees to every person the freedom of conscience and the right to profess, practice and propagate religion. But this right is subject to public order, morality and health and to the other provisions of Part III of the Constitution. Article 25 also empowers the State to regulate or restrict any economic, financial, political or other secular activity, which may be associated with religious practice and also to provide for social welfare and reforms. “The protection of Articles 25 and 26 is not limited to matters of doctrine of belief. It extends to acts done in pursuance of religion and, therefore, contains a guarantee for ritual and observations, ceremonies and modes of worship, which are the integral parts of religion”.[xii] UCC is not opposed to secularism or will not violate Article 25 and 26. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Marriage, succession and like matters are of secular nature and, therefore, law can regulate them. No religion permits deliberate distortion.[xiii] The UCC will not and shall not result in interference of one’s religious beliefs relating, mainly to maintenance, succession and inheritance. This means that under the UCC a Hindu will not be compelled to perform a Nikah or a Muslim be forced to carry out Saptapadi. But in matters of inheritance, right to property, maintenance and succession, there will be a common law. Justice Khare, in the case[xiv], said, “It is no matter of doubt that marriage, succession and the like matters of secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution.” The Chief Justice also cautioned that any legislations which brought succession and like matters of secular character within the ambit of Articles 25 and 26 is a suspect legislation, he also reminded that “there is no necessary connection between religious and personal law in a civilized society”. Article 25 confers right to practice and profess religion, while Article 44 divests religion from social relations and personal law. The whole debate can be summed up by the judgment given by Justice R.M. Sahai. He said, “Ours is a secular democratic republic. Freedom of religion is the core of our culture. Even the slightest of deviation shakes the social fibre. But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms are not autonomy but oppression. Therefore, a unified code is imperative, both, for protection of the oppressed and for promotion of national unity and solidarity.”[xv]

IS UNIFORM CIVIL CODE AGAINST ARTICLE 29 OF THE CONSTITUTION OF INDIA?

The defence taken against Art. 44 is of Art. 29[xvi] that guarantees right as to ‘culture’. It is contended that personal law forms a part of ‘culture’. The word ‘culture’ is not defined in Art. 29. However, one thing is certain that it has to be read with Article 44 & 51A (f)[xvii]. It has to be taken into consideration that Articles 25-28 are grouped under the heading ‘freedom of religion’ and thereafter, comes the heading ‘Cultural & Educational rights’ including thereunder Articles 29 & 30. It would follow that the ‘culture’ referred to in Art. 29(1) is something which is not founded on religion and which may belong to any section of the citizens’ which may not be necessarily a religious community. The distinction between culture and religion needs to be taken into consideration. The best illustration of this proposition would be a saying “I am Muslim by religion, but a Hindu by culture”. If this proposition be true, a Muslim’s claim to be governed by a different personal law, alleged to be founded on religion, cannot be defended as a fundamental right under Article 29(1). A fear is expressed that if Art. 44 is implemented, it would take away the separate identity of Minority communities. This fear is totally not based on valid reasons as there are Articles 25-27 of the Constitution of India to protect one’s own religion, religious beliefs & sentiments.

UNIFORM CIVIL CODE VIOLATES THE DIVINITY OF PERSONAL LAWS

There is another problem which UCC faces is that personal laws cannot be amended because they are the laws based on religious texts and has divine origins and they are the sources of all other laws. But this claims are baseless because personal laws are subject to interpretation and can modified time to time by seeing the need of the society, there are certain provisions in personal laws which violates the individual rights which are provided by the constitution of India. The personal laws are based on the customary practices and custom changes with course of time so as the laws should be amended accordingly. Art.44 is the provision to implement the objective of ‘fraternity, unity and integrity of the Nation” which is not manifested in the preamble of the Constitution, but also in the Fundamental Duties in Art. 51A(c) and (e).Uniform Civil Code
It is a universal fact that gender injustice is present in the personal laws of all communities. This is because of the customary condition under which they evolved. Thus there is need for uniform civil code to ensure not only equality between men and women but also to bring about gender justice. But due to the absence of UCC this concepts gender equality is not been achieved. Supreme Court of India have given significant judgement concerning polygamy of Hindu men after conversion to Islam in Sarla Mudgal case[xviii] while in Lily Tomas case[xix] concerning polygamy of Christian men after conversion to Islam raised the debate of discrimination and demand of UCC.

The Muslim personal law had incorporated more rigid and unfair usages. The Muslim law permits polygamy (four wives at a time) to Muslim male but wife do not have same option as MuslimS man have. Under Muslim law husband can pronounce unilateral divorce but wife to remarry same husband has to go through ‘Halala’ process which is very inhuman and discriminatory; woman’s status is inferior in all forms of customary divorce and depends on her husband consent. There is gender discrimination in matters of succession like presence of brother make sister succession void. There is no maintenance provision of divorced wife. Though Supreme Court has taken progressive step in Shah Bano case[xx] entitling women for maintenance under criminal code[xxi]. Later in Daniel Latifi case [xxii]ruled that “liability of Muslim husband to maintain his divorced wife is beyond Iddat period. If she is not unmarried and is unable to maintain herself she is entitled for maintenance from her relative who would be entitled to succeed her property on her death and if has no relative then from Wakf board”. The Muslim representatives’ referred to Quranic prescriptions which were regarded as the base of their personal laws. As Justice Tulzapurkar observed, “peculiar features of Muslim personal law are unjust, derogatory, humiliating and discriminatory against Muslim women on the ground of sex”[xxiii].

The other Communities like Christian, Parsi and Jews also have provisions of discriminates; like conversion is a ground for divorce for non-converted spouse. A Christian husband can divorce wife on ground of adultery but wife has to prove more grounds in addition to adultery on her husband part to obtain divorce. Before the Juvenile Justice Act was amended in 2000, there was irregularity in the adoption process and many restriction with regard to religion and personal laws were prevailing but the JJ Act freed the legal obstacles under personal laws and made it easy and accessible for any person of any religion and marital status to adopt a child once declared legally abandoned. An adoption under the Act gives the adopted child every legal right that a natural child is entitled to. Recently in the case of Shabnam Hashmi v. Union of India[xxiv], when activist Shabnam Hashmi knocked the door of the Supreme Court to seek the right to adopt and right to be adopted as a fundamental right. The court observed that” the right to adopt a child by a person as per the provisions of the Juvenile Justice Act would prevail over all personal laws and religious codes in the country. But, it added, that personal laws would continue to govern any person who chooses to submit himself to such laws until such time that the vision of a uniform civil code is achieved.” The debate of uniform civil code is not solved yet, but in the course of time it has become more complex. There is an urgent need to sort this problem because in the course of time people will take this matter as a matter of religious pride and minority will think that Uniform civil code will be brought only to ruin their religion, culture, and personal law. But in fact nothing such attempt or aim is there with regard to UCC, More debates and discussion are needed to implement UCC, people are needed to be more educated and think beyond the religious aspect and adopted common civil code because it is for the purpose of unification of secular India. Minority community are needed to come forward to and adopt Art.44 which will implement gender equality and will also protect all the individual right guaranteed under Constitution of India.

CONCLUSION

The founding fathers of the Constitution thought that a Uniform Civil Code was necessary for our national unity and for secularism. So far this paper has read like a litany of negatives. As authors of this paper we belong to a school of thought were we firmly believe that as far as religious practice and rituals are concerned mode of worship are concerned and all rituals connected with life is concerned religion can legitimately occupy that space and control that space, now weather a person has to be cremated or buried, how are the marriage is going to take place etc. this are all matters of religious freedom and all of us must guarantee that religious freedom as far as individual are concerned. But religion cannot dictate upon rights of an individual, an individual acquires certain rights by virtue of its birth as a citizen of India weather you are born male or female you should have same category of rights. This gambit of rights cannot be controlled by personal laws it should be controlled by Constitutional practices. Turn where we will, the government, the press, the politicians, the academics and even the minority organisations – none of them have taken any substantial active interest in the Uniform Civil Code. At best they have ignored it. At worst they have spread false information and impressions about it. The topic has become much more communalised today than it was in 1947, as the speeches over the years against a Uniform Civil Code go to show. Why then has this subject become important and of immediate concern now? Is that in itself a mistake? Are we merely rebelling against some 15% odd people for thwarting the will of the rest of the country? After thinking as much as possible about the topic, we should not inclined to dismiss the Uniform Civil Code in this manner. It warrants more serious attention.

Uniform Civil Code can be successfully implemented only after achieving improved levels of literacy, awareness on various socio-political issues, enlightened discussions and increased social mobility. The UCC should be seen with the aspect of constitution not with aspect of religion. A national uniform civil code could be followed. Goa has shown the way and there is absolutely no reason for delay. A secular India needs a uniform civil code. If there is One India there must be one law.